INTRODUCTION

This action, involving a fee dispute between an attorney and her former client, is emblematic of the collateral litigation that all too often arises when there is a communication gap between a lawyer and a client. To enhance attorneys' and clients' understanding of their respective obligations, the Courts of New York established rules requiring lawyers to provide written information to their clients about their proposed legal services and their billing practices when they are hired. See 22 NYCRR §1215 (effective March 4, 2002). To streamline the resolution of fee disputes between lawyers and their clients, the Courts created a mandatory Fee Dispute Resolution Program [FDRP]. See 22 NYCRR Part 137 (effective January 1, 2002). In the Seventh Judicial District, the Monroe County Bar Association [MCBA] administers the FDRP.

The fee dispute between plaintiff and her former attorney overlapped the implementation of the FDRP. In this action, the Court has been asked to decide whether the fees sought by defendant attorney are reasonable. In so doing, the Court must resolve several preliminary issues involving the FDRP procedures and the Program's applicability to the case at bar.

PROCEDURAL BACKGROUND

In brief, plaintiff client claims that the attorney's fees charged by her former attorney under the parties' two retainer agreements are unreasonable and excessive given the legal work defendant actually performed. On December 28, 2002, the parties submitted their fee dispute to the MCBA's Fee Arbitration Committee for resolution. The Committee conducted an arbitration proceeding on May 12, 2003, and issued its decision on June 12, 2003. [*2]

Relying on the FDRP, 22 NYCRR §137.8 (effective January 1, 2002), defendant attorney filed a demand for a trial de novo with the Court on July 11, 2003. A trial de novo was conducted on August 11, 2003. In addition to the extensive testimony of several witnesses,^[FN1] the parties submitted hundreds of pages of documentation relating to their claims.^[FN2] On September 26, 2003, the Court requested additional information from the parties, which it received in October 2003.

In a civil action, a plaintiff normally has the burden of showing, by a preponderance of the evidence, that he or she is entitled to a judgment against a defendant. See Kurz v. Doerr, 180 NY 88, 91 (1904); New York Pattern Civil Jury Instructions 1:23 (December 2004). In a fee dispute proceeding, however, it is the attorney's burden "to prove the reasonableness of the fee by a preponderance of the evidence," regardless of whether the attorney is the plaintiff or defendant. 22 NYCRR §137.7(d). See Sand v. Lammers, 150 AD2d 355, 356 (2d Dep't 1989). In this trial de novo, therefore, defendant attorney must show, by a preponderance of the credible evidence, that the legal fees she charged her former client are reasonable.

Based on the credible evidence presented in this action, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

On November 1, 2001, plaintiff client hired defendant attorney to represent her in connection with problems she was experiencing at work. Specifically, defendant believed that her employer was discriminating against her based on her gender and disabilities.

The parties' November 1, 2001 Retainer Agreement stated that defendant would "attempt to negotiate a severance/settlement package" with plaintiff's employer. The Agreement provided that defendant's legal work was to be charged at an hourly rate of $125.00. As required by the Agreement, plaintiff paid defendant a $2,500.00 retainer.

On November 27, 2001, defendant sent a letter to plaintiff's employer outlining her client's position and asking for immediate relief. On January 15, 2002, defendant sent a second letter to plaintiff's employer asking for the transcript of a November 29, 2001 meeting that was held between plaintiff and her employer's Human Resource Manager. The employer's response letter of January 31, 2002 denied defendant's request.

In late January 2002, Ms. Marianetti drafted and filed an administrative complaint with the Equal Employment Opportunity Commission on her client's behalf. Although the parties' November 1, 2001 Retainer Agreement referred to potential sex and disability discrimination claims, the EEOC Complaint prepared by defendant asserted discriminatory conduct solely on the basis of plaintiff's disabilities. Plaintiff reviewed and signed the completed EEOC complaint [*3]on January 29, 2002.

On February 8, 2002, plaintiff was fired from her job. Four days later, on February 12, 2002, plaintiff entered into a second retainer agreement with defendant attorney providing that defendant would represent her "with respect to the circumstances surrounding [her] termination from employment," and agreeing to pursue litigation on her client's behalf. In contrast to their earlier retainer agreement, the February 12, 2002 Retainer Agreement referred only to plaintiff's potential disability discrimination claims; the Agreement did not refer to any potential sex discrimination claims.

The February 12, 2002 Retainer Agreement provided for fees based on an out-of-court hourly rate of $190.00 per hour, and an in-court hourly rate of $225.00 per hour. When the second Agreement was signed, plaintiff paid her attorney an additional $2,500.00 towards the retainer fee.

In early February 2002, plaintiff referred a colleague of hers to defendant as a potential client. After meeting with defendant, plaintiff's colleague hired defendant to represent her with respect to own legal matter.

In mid-February 2002, defendant prepared a retaliation complaint to the EEOC on behalf of plaintiff. On February 19, 2002, plaintiff reviewed and signed the second EEOC complaint, which defendant then filed.

Shortly after the second EEOC complaint was filed in late February 2002, the relationship between plaintiff and her attorney apparently became more difficult. Nevertheless, after the EEOC issued a 90-day "Right to Sue Letter" in mid-June 2002, defendant began research and draft a federal court employment discrimination complaint for plaintiff. Defendant worked on the draft complaint in late July and early August 2002.

Plaintiff and defendant met to discuss the draft complaint and anticipated lawsuit on August 16, 2002. At the meeting, defendant concluded that her relationship with plaintiff was irreconcilable and that she could not continue to represent plaintiff. Consequently, at the meeting, defendant ended her relationship with plaintiff, gave her a list of attorneys whom plaintiff could contact, and advised plaintiff that she would send her an itemized statement of her services and charges.

On August 19, 2002, defendant faxed an itemized bill to plaintiff. This was the first statement defendant had sent to plaintiff in the course of their nine-and-a-half month relationship. According to the statement, defendant had charged her former client for 13.92 hours of work at $125.00 per hour, for a total of $1,740.00 under the November 1, 2001 Agreement; and for 15.42 hours of work at $190.00 an hour, for a total of $2,929.80, under the February 12, 2002 Agreement. The total amount defendant assessed against plaintiff's retainers for work performed under both retainer agreements was $4,669.80. Because plaintiff had previously paid defendant $5,000.00 in retainers, defendant's statement indicated that she owed plaintiff a $330.20 refund. This refund has yet to be paid.^[FN3]

[*4]CONCLUSIONS OF LAW

Before addressing the merits of defendant's claims, the Court must resolve a number of preliminary legal questions. These questions arise, in part, from the inevitable unpredictable glitches that ensue when a new program, such as the Fee Dispute Resolution Program, is implemented. The Court must decide, first, whether a party to a fee arbitration conducted under the FDRP is entitled to a judicial trial de novo without commencing a formal action if he or she disagrees with the arbitration decision.

I.What Procedures Must An Aggrieved Party Follow to Obtain De Novo Review Following an Arbitration Decision Under the Fee Dispute Resolution Program?

The FDRP clearly gives any party who is unsatisfied with an FDRP arbitration decision regarding an attorney-client fee dispute the right to obtain de novo judicial resolution of the dispute. Scattered throughout the Program's rules are references to an aggrieved party's right to a trial de novo following an FDRP arbitration decision. For example, 22 NYCRR §137.8 provides for "De Novo Review," and the Program's "Standards and Guidelines" refer to "Trial de Novo." See 22 NYCRR Part 137, Appendix A, Section 12. Under 22 NYCRR §137.8(c), "Arbitrators shall not be called as witnesses nor shall the arbitration award be admitted in evidence at the trial de novo." The New York State Unified Court System's web page describing the FDRP states, "Arbitration awards become final and binding by operation of law if neither party seeks a trial de novo within 30 days." See www.courts.state.ny.us/admin/feedispute.

What is less clear is whether a "demand for a trial de novo" is the proper procedure for obtaining judicial relief following a fee dispute arbitration proceeding under the FDRP. Pursuant to 22 NYCRR §137.8(a), "a party aggrieved by the arbitration award may commence an action on the merits of the fee dispute in a court of competent jurisdiction within 30 days after the arbitration award has been mailed." 22 NYCRR §137.8. See also 22 NYCRR Part 137, Appendix A, Section 12.

A "demand" for a trial de novo, however, is not equivalent to the commencement of an action. To the contrary, a "trial de novo" is a proceeding that is available upon demand by any party to an action after that action has been commenced properly in a court of competent jurisdiction, and after either: (1) the commenced action was submitted to arbitration under 22 NYCRR §28.2; or (2) an arbitration award has been rendered in the previously commenced action. See 22 NYCRR §28.12(a).

In this case, neither party commenced an action in this Court pursuant to the statutory procedures for the commencement of actions in city courts. See NY Uniform City Court Act §400 (commencement of city court actions); NY Uniform City Court Act §1803 (commencement of small claims actions). Instead, one party filed a self-styled document labeled, "Notice of Trial De Novo," and declared that it was an "application . . . specifically made pursuant to Section 137.8(a) [of 22 NYCRR]." Before the trial de novo was conducted, the Court's file in this matter contained only this Notice; the file contained no Summons, no Complaint, no Answer, no Note of Issue, and no Certificate of Readiness.

Despite the lack of a properly commenced city court action as required by 22 NYCRR §137.8, the Court finds that it is not jurisdictionally fatal for a party who is aggrieved by an FDRP arbitration decision to initiate de novo judicial review by filing a "Demand for a Trial De [*5]Novo." Both the Program's goals and the Program's own procedures compel this conclusion.

The primary purpose of the FDRP is to make it easier, not more onerous, for clients to obtain fair resolutions of fee disputes with their attorneys. As the Chief Judge of the New York Court of Appeals observed, the Program's goal is to offer a "fair and speedy alternative to litigation" over attorneys' fees disagreements. Judge Judith S. Kaye, "The State of Judiciary 2002," January 14, 2002.

To advance this goal, the FDRP was designed to enable clients to raise their claims, present their arguments, and obtain arbitration decisions resolving their fee disputes without having to hire separate lawyers to draft and file all the documents necessary to commence and pursue litigation in court.^[FN4] To activate the FDRP procedures, a client has only to submit a simple "Client Request for Fee Arbitration" form. In response, an attorney must submit a simple "Attorney Response to Request for Fee Arbitration" form.^[FN5] See Model Forms, www.courts.state.ny.us/admin/feedispute/model_forms.shtml.

Once an arbitration decision is issued, the Program's regulations require the aggrieved party to seek de novo review within 30 days after the arbitration award was mailed. See 22 NYCRR §137.8. This time frame mirrors the steps that must be followed by a party to a judicial action, previously commenced in a court of law, who has received an adverse arbitration decision in the action. In particular, pursuant to 22 NYCRR §28.12:

Any party who is not in default within 30 days after service upon such party of the notice of filing of the [arbitration] award with the appropriate court clerk . . . may file with the clerk of the court where the award was filed and serve upon all adverse parties a demand for a trial de novo.

In other words, to obtain a trial de novo following an arbitration proceeding conducted pursuant 22 NYCRR Part 28, Alternative Method of Dispute Resolution by Arbitration, a party is not required to commence an action. Instead, the aggrieved party must merely file a short demand for a trial de novo within a matter of days after the arbitration decision was filed.

Surely the FDRP did not mean to create more procedural hurdles for an aggrieved party desiring "de novo review" following an arbitration decision issued under 22 NYCRR §137.7(f) than those in place for an aggrieved party seeking "de novo review" following an arbitration decision issued under 22 NYCRR §28.11(a). The imposition of additional hurdles, however, would be the direct consequence of compelling an aggrieved party to commence a formal action rather than filing a simple "demand" for a trial de novo.

That the FDRP's regulations should not be construed to require more than a simple demand for a trial de novo is supported by other aspects of the Program's procedures. First, a rule mandating the commencement of a formal civil action within thirty days would give a [*6]litigant precious little time to do so properly. Generally, a plaintiff is entitled to file a lawsuit within the applicable statute of limitations period. Four months is the shortest statute of limitations afforded to a plaintiff under New York's rules governing civil actions. See NY CPLR §§201-18. Conversely, thirty days is normally the time period provided for filing simple summary documents, such as a Notice of Appeal under NY CPLR §5513 or a demand for a trial de novo under 22 NYCRR §28.12. It is illogical to interpret the FDRP rules to require the commencement of a formal legal action within a time period that is three months shorter than the CPLR's shortest statute of limitations period.^[FN6]

Second, the provision permitting "the aggrieved party" to request a trial de novo makes little sense if the "aggrieved party" is required to file a new action against the other party. This interpretation would result in lawsuits with meaningless legal claims because the party aggrieved by an arbitration award is not necessarily the same party who would be the plaintiff in a lawsuit.

Consider, for instance, a case where Lawyer claims that Client owes Lawyer $3,000.00. Client and Lawyer present their case to the FDRP, which issues an arbitration award of $3,000.00 for Lawyer. If the aggrieved party is required to commence an action against the other party to obtain judicial review, the aggrieved Client would have to file a lawsuit against the prevailing Lawyer. Even with a creative new attorney, Client would be hardpressed to assert valid legal claims against Lawyer because Client has never claimed that Lawyer owes Client anything; rather, Lawyer asserts that Client owes Lawyer $3,000.00.

The action before the Court similarly illustrates the ambiguity and confusion arising from an interpretation of the FDRP rules that requires the aggrieved party to commence a legal action against the other party. Here, plaintiff had paid a $5,000.00 retainer to her former attorney. Asserting that defendant's charges were unfair, plaintiff brought her claims to the FDRP.

Although plaintiff was the aggrieved party in the underlying fee dispute, she was not "the party aggrieved by the arbitration award." 22 NYCRR §137.8. To the contrary, defendant was "the party aggrieved by the arbitration award," and was therefore the party who was required to 'commence an action" within thirty days. See 22 NYCRR §137.8. Because defendant had no legal claims against plaintiff (other than her dissatisfaction with the arbitration decision), what claims she would be expected to assert in a newly commenced legal action against her former client are hardly evident.

On the other hand, when construed to require the party aggrieved by the arbitration award to file a demand for a trial de novo, the Program's regulations are logical and internally consistent. Regardless of which party originally had legal claims against the other, and regardless of which party prevailed in the arbitration award, the party who was dissatisfied with the arbitration decision would have the obligation to file the trial de novo demand to obtain judicial resolution. [*7]

For these reasons, the Court holds that under the FDRP, an aggrieved party's simple demand for a trial de novo is sufficient to invoke the court's jurisdiction, notwithstanding 28 NYCRR §137.8, which requires the commencement of an action. Cf. CPLR §103(c)("a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution").

II.Does An Aggrieved Parties' Right To De Novo Review Under the Fee Dispute Resolution Program Apply To the Parties' Fee Dispute in This Action?

A second preliminary question that must be resolved is whether the Fee Dispute Resolution Program applies in this case at all so as to give the parties the right to judicial de novo review. Under 22 NYCRR §137.1(a), the Program's rules apply only to those cases "where [legal] representation has commenced on or after January 1, 2002." Because one period of representation in this case began before January 1, 2002, and a second period of representation began after that date, the answer to the question is not a simple one.

Defendant first agreed to represent plaintiff on November 1, 2001, two months before the Program's applicability date. The parties then signed a second Retainer Agreement on February 12, 2002, one-and-a-half months after the Program's applicability date.

If the November 1, 2001 Agreement had been the parties' only retainer agreement, neither party would be entitled to the protections of the FDRP in general, or to judicial de novo review under 22 NYCRR §137.8 in particular. Because the parties entered into a new Retainer Agreement on February 12, 2002, the Court must decide whether the parties' instant fee dispute is governed by pre-January 1, 2002 rules, post-January 1, 2002 rules, or both.

A.FDRP's Applicability to Legal Work Performed Under the November 1, 2001 Retainer Agreement

When the parties entered into their attorney-client relationship on November 1, 2001, the Fee Dispute Arbitration Program had not yet been implemented. For this reason, the Program's procedures do not apply to any fee disputes relating to any work performed under the parties' November 1, 2001 retainer agreement, and neither party is entitled to invoke the Program's de novo procedures following an arbitration decision.

B.FDRP's Applicability to Legal Work Performed Under the February 12, 2002 Retainer Agreement

The Court reaches a different conclusion with respect to the parties' attorney-client relationship that was established on February 12, 2002. The February 12, 2002 Retainer Agreement did not merely extend the pre-existing relationship that had been created on November 1, 2001. Rather, the February 12, 2002 Agreement was an entirely new and discrete contract for the provision of different legal services at a different hourly rate than those that were contracted for on November 1, 2001, at a different hourly rate. The November 1, 2001 Agreement called for defendant to negotiate a severance package with plaintiff's employer with respect to her client's gender and disability discrimination claims while she was still employed. The November 1, 2001 Agreement specifically stated that plaintiff had retained defendant solely to attempt to resolve this matter outside of court, and "not for the purpose of commencing [*8]litigation or for any other purpose." Under this agreement, defendant was to be paid at an hourly rate of $125.00.

In contrast, the February 12, 2002 Retainer Agreement was a "litigation retainer" providing that defendant would sue plaintiff's employer for illegal disability discrimination following plaintiff's termination from her job. Under the February 12, 2002 Agreement, plaintiff was to pay defendant an hourly rate of $190.00 for out-of-court time, and $225.00 for in-court time.

The February 12, 2002 Retainer Agreement, therefore, was an entirely new contract for legal representation between the parties that was discreet, separate, and distinct from the contract for legal representation that the parties signed on November 1, 2001. Because defendant's legal representation of plaintiff under their new Retainer Agreement began after January 1, 2002, the FDRP, including the Program's de novo review procedures, govern the fee disputes between the parties with respect to legal work performed under the February 12, 2002 Agreement.^[FN7] See C.K. Industries Corp. v. C.M. Industries Corp., 213 AD2d 846, 847-48 (3rd Dep't 1995).

III.Does the Parties' Agreement to Be Bound By the Arbitration Decision Bar the Parties From Obtaining Judicial De Novo Review of Their Fee Dispute?

The final preliminary matter to be resolved is the whether the parties are barred from seeking judicial resolution of their fee dispute given their agreement to submit their fee dispute to binding arbitration. For the reasons that follow, the Court concludes that neither party is barred from seeking judicial resolution of their fee dispute, despite their agreement to be bound by the arbitration decision. The reasons, however, differ with respect to the parties' fee disputes under each of their Retainer Agreements.

A.What Effect Does the Parties' Agreement to Be Bound By the Arbitration Decision Have On Their Fee Dispute Under the November 1, 2001 Retainer Agreement?

On December 28, 2002 and January 3, 2003, respectively, plaintiff and defendant signed the Monroe County Bar Association's "Agreement to Arbitrate." The Agreement the parties signed expressly provided:

THE DECISION AND AWARD OF THE ARBITRATOR(S) [*9]SHALL BE FINAL, and each of the parties hereto agrees to be conclusively bound by the decision and award.

With respect to legal representation that began before January 1, 2002, lawyers and clients who disagreed about legal fees could participate in the Monroe County Bar Association's voluntary Fee Arbitration Program that existed before the FDRP was implemented on January 1, 2002. This program was conducted pursuant to CPLR Article 75. While not mandatory, lawyers and clients who chose to participate in the voluntary arbitration process were required to agree in writing that the arbitration decision would be "conclusively" binding. A party who was dissatisfied with the arbitration decision was entitled to seek judicial review only on the few narrow grounds set forth in CPLR §7511(b)(1).^[FN8]

If one party to the fee dispute chose not to participate in binding arbitration, the aggrieved party's only recourse, short of settlement or mediation, was to initiate a lawsuit against the other party. If necessary, the lawsuit would proceed to a trial on the merits.

On January 1, 2002, the new Fee Dispute Resolution Program took effect. In contrast to the prior Program's voluntary but binding arbitration process, the new Program provides for attorneys' mandatory participation in arbitration and a de novo review process.

Given the growing pains that often accompany the implementation of a new program, it is understandable that confusion ensued as to whether defendant's participation in the MCBA's fee dispute arbitration process was voluntary or mandatory, and whether the arbitration was binding or subject to de novo judicial review. The evidence in this action demonstrates that everyone involved contributed to the confusion that was created: plaintiff, defendant, and the Monroe County Bar Association.

The confusion began with plaintiff's September 9, 2002 letter to defendant stating generally that she disputed the fees listed in the itemized statement defendant had sent her. Because the itemized statement included work performed under both retainer agreements, it was unclear whether plaintiff was disputing work performed under either or both of the agreements.

In her September 10, 2002 reply letter, defendant told plaintiff, "Since you have not informed me of the specific details of your dispute with the bill, it appears this will have to be handled through the Monroe County Bar Association Fee Disputes Measures." As discussed above, though, this statement was true only with respect to work performed on or after February 12, 2002; it was not true with respect to work performed under the November 1, 2001 retainer agreement.

The documents and correspondence that the MCBA sent to the parties compounded the confusion. Although 22 NYCRR Part 137 took effect on January 1, 2002, the MCBA did not [*10]revise its fee arbitration forms to incorporate the FDRP until sometime in 2003.^[FN9] As a result, the Agreement to Arbitrate Form that MCBA sent to the parties on December 27, 2002 reflected the pre-2002 rules providing for binding arbitration, not the post-2002 rules providing for de novo review.^[FN10]

Nor did any of the MCBA documents that were provided to the parties explain that the pre-2002 voluntary arbitration rules remained in effect for legal work that commenced prior to January 1, 2002, and that the new compulsory arbitration rules applied to legal work that commenced on or after January 1, 2002. The omission is significant in this action because defendant testified at the trial de novo that the MCBA had advised her that her participation in the fee dispute arbitration process was mandatory.^[FN11]

Because the rules mandating attorneys' participation in fee dispute arbitration had been in effect since January 2002, it makes sense that in December 2002, the MCBA would have advised attorneys, including defendant, that participation in the FDRP was compulsory. Regardless, the Court finds that when defendant received the MCBA's December 27, 2002 letter and Form "Agreement to Arbitrate," she understandably, though mistakenly, believed she had no choice but to participate in the MCBA's fee arbitration process, and to sign the binding arbitration form that the MCBA provided her. Consequently, the Court concludes that with respect to the fee dispute concerning defendant's legal work performed under the November 1, 2001 Retainer Agreement, defendant's participation in the binding arbitration process was not based on a voluntary, knowing, and willing choice to do so. As such, defendant cannot be bound by the May 12, 2003 arbitration decision with respect to the parties' fee dispute regarding defendant's legal work under the November 1, 2001 Retainer Agreement. With respect to this part of the parties' fee dispute, therefore, the June 12, 2003 arbitration decision is neither binding nor enforceable.

Given the Court's holding, the parties now have at least four options to resolve their dispute about the legal fees charged under their November 1, 2001 Retainer Agreement: (1) they can settle their dispute amicably; (2) they can knowingly and willingly agree to participate in mediation; (3) they can knowingly and willingly agree to participate in the MCBA's binding arbitration process pursuant to the pre-January 1, 2002 rules; or (4) plaintiff can commence a legal action against defendant in court.

B.What Effect Does the Parties' Agreement to Be Bound By the Arbitration Decision Have On Their Fee Dispute Under the February 12, 2002 Retainer Agreement? [*11]

As discussed above, the MCBA "Agreement to Arbitrate" form that plaintiff and defendant signed on December 28, 2002 and January 2, 2003, respectively, provided for binding and final arbitration. Because the FDRP was implemented on January 1, 2002, however, the information about binding information in the MCBA's form agreement was obsolete with respect to legal work that commenced on or after January 1, 2002.

Under the FDRP, the submission of a fee dispute to mandatory arbitration does not bar judicial de novo review unless the parties expressly waive their rights to such review in advance. See 22 NYCRR §§137.2(a), (c). Further, under 22 NYCRR §137.2(c), any agreement by the parties to waive their rights to de novo review must be made "in writing in a form prescribed by the Board of Governors." The written waiver form prescribed by the Board of Governors requires both parties to acknowledge that:

they agree to be bound by the decision of the arbitrator(s) and agree to waive their rights to reject the arbitrator(s) award by commencing an action on the merits (trial de novo) in a court of law within 30 days after the arbitrator(s) decision has been mailed. . . . Attorney and Client understand that they are not required to agree to waive their right to seek a trial de novo under Part 137.

None of the documents signed by the parties in connection with their fee dispute includes the express waiver language required by 22 NYCRR §137.2(c). Accordingly, despite language suggesting otherwise in their "Agreement to Arbitrate," the parties retain their right to seek judicial de novo review of their dispute over fees charged for work performed under the February 12, 2002 Retainer Agreement.

IV.Merits of the Parties' Fee Dispute

A.What Is the Reasonable Value of Legal Work Performed Under the November 1, 2001 Retainer Agreement?

For the reasons previously discussed, in this trial de novo, the Court cannot decide the merits of the parties' fee dispute regarding legal work performed under the November 1, 2001 Retainer Agreement. Nevertheless, it may be helpful to provide some guidance to the parties as to how the Court views this dispute after having reviewed the extensive evidentiary Record in this matter.

In the Court's view, 7 of the nearly 14 hours of legal work performed by defendant under the November 1, 2001 Retainer Agreement were reasonable. However, defendant's time records reveal excessive time expended for several routine or simple tasks. Further, the deduction of defendant's time by the 2 1/2 hours she spent preparing the "Strategy Outline" on November 26, 2001 that she did not turn over to plaintiff with the rest of the file is also warranted.

At the trial, plaintiff testified that from the very beginning of her attorney-client relationship with defendant, defendant rarely returned her telephone calls, did not adequately review the numerous documents provided to her, did not follow her specific instructions, and prepared inadequate legal documents. [*12]

Plaintiff's asserted dissatisfaction with defendant's legal representation from the beginning of their relationship is belied by her actions. After defendant had represented plaintiff for three and a half months, plaintiff not only entered into a second Retainer Agreement at a higher hourly rate with defendant, but she referred a colleague to defendant for legal representation. Furthermore, although plaintiff testified that defendant ignored her wishes to allege a sex discrimination claim, plaintiff signed the EEOC complaint that did not include a sex discrimination allegation, and subsequently entered into a second Retainer Agreement with defendant that did not include any reference to potential sex discrimination claims. Under these circumstances, plaintiff's assertions that she was unsatisfied with defendant's legal strategies devised under the November 1, 2001 Agreement are not credible.^[FN12]

In sum, while the Court's position is not dispositive, the Court believes that a fee of $1,000.00 for legal work performed under the November 1, 2001 Retainer Agreement, representing 8 hours of work at $125.00 an hour, is reasonable.

II.Fee Dispute Over Legal Work Performed Under the February 12, 2002 Retainer Agreement

As discussed above, the Court has jurisdiction to decide, in this trial de novo, the reasonable amount of fees defendant is entitled to receive for the legal work she performed under the February 12, 2002 Retainer Agreement. A reasonable fee amount must be based on quantum meruit, taking into consideration of a variety of factors. See Lai Ling Cheng v. Modansky Leasing Co., Inc., 73 NY2d 454, 457-58 (1989); Tops Markets, Inc. v. Quality Markets, Inc., 295 AD2d 977, 978 (4th Dep't 2002). Among the factors to be considered are the nature of the litigation, the difficulty of the case, the time spent, the amount of money involved, the results achieved and amounts customarily charged for similar services. See Smith v. Boscov's Department Store, 192 AD2d 949, 950-51 (3rd Dep't 1993).

Defendant has shown, by a preponderance of the credible testimony and documentary evidence, that a fee of $1,330.00 for 7 of the 15.5 hours of work performed at $190.00 an hour under the February 12, 2002 Retainer Agreement is reasonable. Both the factual issues and the legal issues involved in plaintiff's case were complex. There were a large number of documents associated with plaintiff's claims that had to be reviewed and analyzed. Defendant filed a retaliation EEOC administrative complaint, and an EEOC "Right to Sue" Letter, a prerequisite to litigation, was obtained. Defendant also researched and prepared two drafts of a federal court disability discrimination complaint.

On the other hand, the Court finds that defendant spent excessive time performing otherwise simple or routine tasks, such as 60 minutes to examine the file on February 12, 2002, 15 minutes to review the EEOC letter on February 28, 2002, and 15 minutes to review the file on April 1, 2002, May 1, 2002, and June 1, 2002. Accordingly, the Court finds that a significant reduction of the number of compensable hours of work performed under the February 12, 2002 Retainer Agreement is in order.

The Court notes that of the dozens of documents, faxes and emails plaintiff sent to [*13]defendant between February 12, 2002 and August 16, 2002, when their relationship ended, none raised any complaints or concerns about the extent or quality of Ms. Marianetti's legal work. Moreover, although plaintiff claims that defendant did not follow her directions about legal strategy, defendant signed the February 12, 2002 Retainer Agreement that explicitly provided for litigation only with respect to plaintiff's disability discrimination claims. Plaintiff's assertion that defendant disregarded her specific instructions is therefore unsubstantiated.^[FN13]

For these reasons, the Court finds that defendant is entitled to reasonable compensation for 7 hours of legal work at $190 an hour, for a total of $1,330.00, under the February 12, 2002 Retainer Agreement.

CONCLUSION

Plaintiff paid defendant a total retainer of $5,000.00 under her two retainer agreements. Defendant has charged $1,740.00 for legal work performed under the November 1, 2001 Retainer Agreement. For the reasons set forth above, the Court believes that the reasonable value of defendant's legal work under the November 1, 2001 Agreement is $1,000.00, not $1,740.00, and that defendant should refund $740.00 to plaintiff. Nonetheless, because the Court has no authority to rule on this dispute at this time, the Court's views are not binding.

With respect to work performed under the February 12, 2002 Retainer Agreement, the Court finds that a fee of $1,330.00 for 7 hours of work performed at $190.00 an hour is reasonable. Defendant is entitled to retain $1,330.00 of plaintiff's $5,000.00 retainers for work performed under the February 12, 2002 Agreement in addition to the $1,740.00 she has retained for work performed under the November 1, 2001 Agreement.

Thus, plaintiff is entitled to a refund of $1,930.00 from defendant.^[FN14] In addition, she is entitled to the $100.00 "inconvenience" payment that defendant agreed in Court to pay plaintiff.

Accordingly, Judgment for plaintiff is granted in the amount of $2,030.00, plus costs. Plaintiff's claim for a refund from the $1,740.00 fee retained by defendant for legal work performed under the November 1, 2001 Retainer Agreement is denied at this time without prejudice.^[FN15] [*14]

SO ORDERED.

March 28, 2005________________________________

Hon. Ellen M. Yacknin